State v. Beitel , 296 Neb. 781 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    STATE v. BEITEL
    Cite as 
    296 Neb. 781
    State of Nebraska, appellee, v.
    Roger Beitel, appellant.
    ___ N.W.2d ___
    Filed June 2, 2017.     No. S-16-098.
    1.	 Judgments: Speedy Trial: Appeal and Error. As a general rule, a
    trial court’s determination as to whether charges should be dismissed
    on speedy trial grounds is a factual question which will be affirmed on
    appeal unless clearly erroneous.
    2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach an
    independent conclusion irrespective of the determination made by the
    court below.
    3.	 ____: ____. Statutory language is to be given its plain and ordinary
    meaning, and an appellate court will not resort to interpretation to
    ascertain the meaning of statutory words which are plain, direct, and
    unambiguous.
    4.	 Statutes. It is not within the province of a court to read a meaning into
    a statute that is not warranted by the language; neither is it within the
    province of a court to read anything plain, direct, or unambiguous out of
    a statute.
    5.	 Statutes: Legislature: Intent. In reading a statute, a court must deter-
    mine and give effect to the purpose and intent of the Legislature as
    ascertained from the entire language of the statute considered in its
    plain, ordinary, and popular sense.
    6.	 Speedy Trial: Joinder: Statutes: Legislature: Intent. The plain lan-
    guage of Neb. Rev. Stat. § 29-1207(4)(e) (Reissue 2016) and its legis-
    lative history both suggest that the Nebraska Legislature intended the
    statutory right to speedy trial to be a personal right which is not lost
    merely because a defendant is joined for trial with codefendants whose
    time for trial has not run.
    7.	 Speedy Trial: Statutes: Time. Nebraska’s speedy trial statute, Neb.
    Rev. Stat. § 29-1207(1) (Reissue 2016), provides that every person
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    indicted or informed against for any offense shall be brought to trial
    within 6 months and that such time shall be computed as provided in
    § 29-1207.
    8.	 ____: ____: ____. To compute the 6-month speedy trial period, a court
    must exclude the day the State filed the information, count forward 6
    months, back up 1 day, and then add any time excluded under Neb. Rev.
    Stat. § 29-1207(4) (Reissue 2016).
    9.	 Speedy Trial. The primary burden of bringing an accused person to trial
    within the time provided by law is upon the State.
    10.	 Speedy Trial: Dismissal and Nonsuit. If the State does not bring a
    defendant to trial within the permitted time, as extended by any peri-
    ods excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016), the
    defend­ant is entitled to absolute discharge from the offense charged.
    11.	 Speedy Trial: Proof. The burden of proof is on the State to show, by a
    preponderance of the evidence, that one or more of the excluded periods
    under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable.
    12.	 Speedy Trial: Joinder. The plain language of Neb. Rev. Stat.
    § 29-1207(4)(e) (Reissue 2016) contains three elements that must
    be satisfied for the codefendant exclusion to be applicable: (1) The
    defend­ant’s case must be joined for trial with that of a codefendant
    as to whom the speedy trial time has not run, (2) the period of delay
    must be reasonable, and (3) there must be good cause for not granting
    a severance.
    13.	 Speedy Trial: Joinder: Pretrial Procedure: Waiver. A joined codefend­
    ant’s failure to request a severance before his or her speedy trial time
    expires has the practical effect of waiving the possibility of a severance,
    but does not result in a waiver of the right to speedy trial.
    14.	 Speedy Trial: Joinder: Motions to Dismiss: Time. In cases where a
    joint trial is set for a date certain when the defendant files his or her
    motion for absolute discharge, the period of delay for purposes of Neb.
    Rev. Stat. § 29-1207(4)(e) (Reissue 2016) is determined by first calcu-
    lating the defendant’s speedy trial time absent the codefendant exclu-
    sion and then determining the number of days beyond that date that the
    joint trial is set to begin.
    15.	 Speedy Trial: Joinder: Words and Phrases. For purposes of Neb. Rev.
    Stat. § 29-1207(4)(e) (Reissue 2016), “good cause” means a substantial
    reason; one that affords a legal excuse. Good cause is something that
    must be substantial, but is also a factual question dealt with on a case-
    by-case basis.
    Appeal from the District Court for Scotts Bluff County: Leo
    Dobrovolny, Judge. Affirmed.
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    STATE v. BEITEL
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    Robert O. Hippe and Kyle J. Long, of Robert Pahlke Law
    Group, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Stacy, J.
    Roger Beitel appeals from an order denying his motion
    for absolute discharge. He contends the district court mis-
    applied the codefendant exclusion under Neb. Rev. Stat.
    § 29-1207(4)(e) (Reissue 2016) when computing time under
    Nebraska’s speedy trial statutes.1 Finding no clear error,
    we affirm.
    I. FACTS
    Roger and his father Allen Beitel were both charged in the
    district court for Scotts Bluff County with criminal conspiracy
    to commit felony theft in an aggregate amount of more than
    $1,500. The information against Allen was filed July 1, 2015,
    and the information against Roger was filed July 15. At Allen’s
    arraignment, his case was set to be tried during the jury term
    beginning October 5. At Roger’s arraignment, his case was set
    to be tried during the jury term beginning November 2.
    On September 21, 2015, Allen filed a motion to continue
    trial in his case because he was waiting on discovery materi-
    als from the State. The following day, the State moved to join
    Roger’s and Allen’s cases for trial.
    On October 5, 2015, a hearing was held on Allen’s motion
    to continue and the State’s motion to join the cases for trial.
    Both Roger and Allen were present at the hearing and repre-
    sented by counsel. During the hearing, Allen expressly waived
    his right to speedy trial, and trial in Allen’s case was continued
    to a date to be determined. Roger’s speedy trial time was not
    1
    See Neb. Rev. Stat. §§ 29-1207 to 29-1209 (Reissue 2016).
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    addressed during the October 5 hearing. At the close of the
    hearing, the State’s motion for joinder was taken under advise-
    ment. In an order entered November 18, the court granted the
    motion to join Roger’s and Allen’s cases for trial.
    A joint pretrial conference was held January 5, 2016. At
    the outset of the pretrial conference, the court discussed trial
    scheduling. The attorneys advised the court they expected trial
    would last 5 days. The court indicated a preference for trying
    the case during the first week of February because there were
    “five [full] days available then” and the court was concerned
    the January jury pool was not large enough to accommodate
    the peremptory strikes of two defendants. The joint trial was
    set for the February 2016 jury term, with jury selection to
    begin on February 1.
    At the conclusion of the pretrial conference, Roger’s counsel
    revisited the trial scheduling issue, stating:
    Your Honor, just to put it on the record, and I know we
    discussed this beforehand if this is better handled in a
    motion, but . . . I believe that we have an objection to
    scheduling of the trial in February, as it exceeds the
    speedy trial date for [Roger].
    Roger’s counsel noted that the prosecutor had provided the
    court “with a memorandum specifying that [Roger’s] speedy
    trial date runs on January 24th if he is not considered to be
    bound to [Allen’s] speedy trial date.” Counsel indicated he was
    raising the issue to give the court an opportunity “to consider
    a separation” of the cases before Roger filed a motion for
    discharge. The court declined to take up either severance or
    discharge during the pretrial conference, stating:
    Well, if you want me to hear a motion to [sever], you
    need to file it and if you want me to hear a motion for
    discharge, you need to file that, too. . . .
    ....
    . . . If you want motion hearings before the day of trial,
    get them on file and just schedule them . . . and we’ll get
    them heard.
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    No motion to sever was filed. But on January 27, 2016,
    Roger filed a motion for absolute discharge alleging his speedy
    trial time had run on January 24. An evidentiary hearing on the
    motion was held the next day.
    At the hearing on the motion to discharge, the court received
    10 exhibits, including (1) the pleadings in Roger’s and Allen’s
    cases, (2) an affidavit from the court clerk listing the jury
    ­trials scheduled for the January 2016 term and showing that
    the only date without a scheduled jury trial was January 25,
    and (3) several exhibits showing that three of the cases set for
    the January 2016 jury term resulted in a plea or dismissal and
    ultimately were not tried. The court also took judicial notice of
    the exhibits received during the earlier hearing on the motion
    for joinder and took judicial notice of all the filings in Roger’s
    and Allen’s criminal cases.
    In an order entered January 29, 2016, the court overruled
    Roger’s motion for absolute discharge. It calculated that the
    6-month statutory speedy trial time2 for Roger would expire on
    January 24 unless the codefendant exclusion of § 29-1207(4)(e)
    applied to exclude additional time. Under that exclusion, a
    court shall exclude “[a] reasonable period of delay when the
    defendant is joined for trial with a codefendant as to whom the
    time for trial has not run and there is good cause for not grant-
    ing a severance.”3
    The court found the State had met its burden of proving each
    of the factors under § 29-1207(4)(e). Specifically, the court
    found that (1) Roger’s case had been joined for trial with a
    codefendant whose speedy trial time had not run, (2) the period
    of delay was reasonable because the joint trial was set to begin
    just 8 days after Roger’s speedy trial time would have run, and
    (3) “no good cause would exist for severance.”
    Roger timely appealed from the denial of his motion for
    absolute discharge. We granted his petition to bypass the
    Nebraska Court of Appeals.
    2
    § 29-1207(1).
    3
    § 29-1207(4)(e).
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    II. ASSIGNMENTS OF ERROR
    Roger assigns, renumbered and restated, that the trial court
    erred in (1) construing § 29-1207(4)(e) to require that a joined
    codefendant must file a motion to sever in order to pre-
    serve his or her statutory right to speedy trial, (2) using the
    ­longer of the joint defendants’ speedy trial calculations when
    § 29-1207(4)(e) suggests the shorter of the two should be used,
    (3) finding the period of delay reasonable when earlier trial
    dates were available, and (4) finding the State proved good
    cause for not granting a severance.
    III. STANDARD OF REVIEW
    [1] As a general rule, a trial court’s determination as to
    whether charges should be dismissed on speedy trial grounds
    is a factual question which will be affirmed on appeal unless
    clearly erroneous.4
    [2] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an indepen-
    dent conclusion irrespective of the determination made by the
    court below.5
    IV. ANALYSIS
    [3-5] The codefendant exclusion in § 29-1207(4)(e) was
    enacted in 1971,6 and although it has been referenced in
    reported opinions,7 no Nebraska appellate court has yet been
    called upon to interpret or apply it. In construing the provi-
    sions of § 29-1207(4)(e), we are guided by familiar prin-
    ciples. Statutory language is to be given its plain and ordinary
    4
    State v. Vela-Montes, 
    287 Neb. 679
    , 
    844 N.W.2d 286
    (2014); State v.
    Brooks, 
    285 Neb. 640
    , 
    828 N.W.2d 496
    (2013).
    5
    State v. Covey, 
    290 Neb. 257
    , 
    859 N.W.2d 558
    (2015); State v. Abdulkadir,
    
    286 Neb. 417
    , 
    837 N.W.2d 510
    (2013).
    6
    1971 Neb. Laws, L.B. 436.
    7
    State v. Lafler, 
    225 Neb. 362
    , 
    405 N.W.2d 576
    (1987), abrogated on other
    grounds, State v. Oldfield, 
    236 Neb. 433
    , 
    461 N.W.2d 554
    (1990); State v.
    Alcaraz, 
    8 Neb. Ct. App. 215
    , 
    590 N.W.2d 414
    (1999).
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    meaning, and an appellate court will not resort to interpretation
    to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.8 It is not within the province of a
    court to read a meaning into a statute that is not warranted
    by the language; neither is it within the province of a court to
    read anything plain, direct, or unambiguous out of a statute.9 In
    reading a statute, a court must determine and give effect to the
    purpose and intent of the Legislature as ascertained from the
    entire language of the statute considered in its plain, ordinary,
    and popular sense.10
    1. No Unitary Speedy Trial Clock
    As a preliminary matter, we note the State asks this court to
    interpret § 29-1207(4)(e) in a way that would impose a unitary
    speedy trial clock on all joined codefendants, measured by
    the codefendant with the most time remaining. We decline to
    adopt such a construction, because it is not supported by the
    plain language of the statute or the legislative history.
    In State v. Alvarez,11 we addressed the history of the adop-
    tion of the Nebraska speedy trial act and recognized that
    our act is “substantially similar to Standards 2.2 and 2.3 of
    the Standards Relating to Speedy Trial, recommended by the
    American Bar Association Project on Minimum Standards for
    Criminal Justice, Approved Draft, 1968” (ABA Standards).
    The legislative history of the Nebraska speedy trial act also
    indicates our Legislature intended to adopt the ABA Standards
    when it enacted the speedy trial act.12
    8
    State v. Sikes, 
    286 Neb. 38
    , 
    834 N.W.2d 609
    (2013); State v. Parks, 
    282 Neb. 454
    , 
    803 N.W.2d 761
    (2011).
    9
    State v. Warriner, 
    267 Neb. 424
    , 
    675 N.W.2d 112
    (2004); State v. Gartner,
    
    263 Neb. 153
    , 
    638 N.W.2d 849
    (2002).
    10
    State v. Mucia, 
    292 Neb. 1
    , 
    871 N.W.2d 221
    (2015); State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
    (2011).
    11
    State v. Alvarez, 
    189 Neb. 281
    , 289, 
    202 N.W.2d 604
    , 609 (1972).
    12
    Floor Debate, L.B. 436, 82d Leg., 1st Sess. (Apr. 15, 1971) (statement of
    Senator David Stahmer).
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    The ABA Standards included commentary related to the lan-
    guage used by our Legislature in § 29-1207(4)(e):
    “This standard emphasizes that the right to a speedy trial
    is a personal right which is not lost merely by the defend­
    ant being joined for trial with other defendants as to
    whom the running of the time limitations has been inter-
    rupted. Thus, if defendant A and defendant B are joined
    for trial, A’s right to speedy trial should not ordinarily be
    impaired by the fact that B has requested or consented to
    a continuance, is not available for trial, etc. However, the
    standard would permit the trial judge, in his discretion,
    to extend the time for A’s trial with B for a reasonable
    period of time for good cause. In such a case the question
    for the judge is whether the need to try A and B together
    is sufficiently great to justify some modest extension of
    the time limits applicable to A.”13
    In requesting that Nebraska’s codefendant exclusion be
    construed to create a unitary speedy trial clock for all joined
    codefend­ants, the State relies extensively on cases interpreting
    the federal Speedy Trial Act of 1974. Like Nebraska’s speedy
    trial act, the federal act contains a codefendant exclusion.
    However, the language used by Congress in its codefendant
    exclusion differs from that used by our Legislature.
    In adopting the federal act, Congress intentionally changed
    the language of the codefendant exclusion from that promul-
    gated by the ABA Standards.14 The federal act contains no
    “good cause” requirement and instead provides that “[a] rea-
    sonable period of delay [may be excluded] when the defendant
    is joined for trial with a codefendant as to whom the time
    for trial has not run and no motion for severance has been
    granted.”15 The U.S. Supreme Court has held the language of
    13
    Miller v. State, 
    706 P.2d 336
    , 340 (Alaska App. 1968) (quoting commentary
    to ABA Standard 2.3(g)).
    14
    See United States v. Payden, 
    620 F. Supp. 1426
    (1985).
    15
    18 U.S.C. § 3161(h)(6) (2012).
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    the federal codefendant exclusion imposes a general rule that
    all joined codefendants fall within the speedy trial computation
    of the latest codefendant.16 A corollary of this federal “unitary
    ‘[s]peedy [t]rial [c]lock’” rule is that an exclusion of time
    that applies to one joined codefendant generally applies to all
    joined codefendants.17
    [6] Because the federal codefendant exclusion is different
    in terms of both language and legislative history, we do not
    interpret § 29-1207(4)(e) to impose a unitary speedy trial clock
    on all joined codefendants. Instead, we find that the Nebraska
    Legislature intended the statutory right to speedy trial to be a
    personal right which is not lost merely because a defendant
    is joined for trial with a codefendant whose time for trial has
    not run.
    2. Excluded Time Under
    § 29-1207(4)(e)
    [7,8] Nebraska’s speedy trial statute, § 29-1207(1), provides:
    “Every person indicted or informed against for any offense
    shall be brought to trial within six months, and such time shall
    be computed as provided in this section.” To compute the
    6-month period, a court must exclude the day the State filed
    the information, count forward 6 months, back up 1 day, and
    then add any time excluded under § 29-1207(4).18
    [9-11] The primary burden of bringing an accused person to
    trial within the time provided by law is upon the State.19 If the
    State does not bring a defendant to trial within the permitted
    time, as extended by any periods excluded under § 29-1207(4),
    the defendant is entitled to absolute discharge from the offense
    16
    Henderson v. United States, 
    476 U.S. 321
    , 
    106 S. Ct. 1871
    , 
    90 L. Ed. 2d 299
    (1986).
    17
    United States v. Payden, supra note 
    14, 620 F. Supp. at 1427
    . Accord,
    United States v. Piteo, 
    726 F.2d 50
    (2d Cir. 1983); United States v.
    Campbell, 
    706 F.2d 1138
    (11th Cir. 1983).
    18
    See State v. Betancourt-Garcia, 
    295 Neb. 170
    , 
    887 N.W.2d 296
    (2016).
    19
    State v. Knudtson, 
    262 Neb. 917
    , 
    636 N.W.2d 379
    (2001).
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    charged.20 The burden of proof is on the State to show, by
    a preponderance of the evidence, that one or more of the
    excluded periods under § 29-1207(4) are applicable.21
    Section 29-1207(4) identifies the periods of time which
    “shall be excluded in computing the time for trial.” In this
    appeal, we are concerned primarily with subsection (4)(e), the
    codefendant exclusion, which requires courts to exclude
    [a] reasonable period of delay when the defendant is
    joined for trial with a codefendant as to whom the time
    for trial has not run and there is good cause for not grant-
    ing a severance. In all other cases, the defendant shall be
    granted a severance so that he or she may be tried within
    the time limits applicable to him or her[.]
    [12] The plain language of § 29-1207(4)(e) contains three
    factors that must be satisfied for the codefendant exclusion to
    be applicable: (1) The defendant’s case must be joined for trial
    with that of a codefendant as to whom the speedy trial time
    has not run, (2) the period of delay must be reasonable, and (3)
    there must be good cause for not granting a severance.
    (a) Filing Motion to Sever
    Before we address whether the statutory factors were satis-
    fied in the instant case, we pause to address whether a motion to
    sever must be filed to invoke the provisions of § 29-1207(4)(e).
    Both parties raise this issue. Roger assigns that the trial court
    erred by construing § 29-1207(4)(e) to require him to file a
    motion to sever in order to preserve his statutory right to a
    speedy trial. And the State argues Roger waived his right to a
    speedy trial by failing to make a motion to sever at a time that
    would have permitted his case to be tried within the time limits
    applicable to him. Both parties are incorrect.
    Roger’s assignment of error is not supported by the record,
    because the trial court neither held nor suggested that Roger
    20
    § 29-1208.
    21
    See State v. Knudtson, supra note 19.
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    waived his right to a speedy trial by not filing a motion to
    sever. And the State’s argument that a joined codefendant
    waives the right to a speedy trial by failing to request a sever-
    ance is also flawed.
    The plain language of § 29-1207(4)(e) references good cause
    for “granting a severance,” and the term “granting” certainly
    connotes the need for a triggering request of some sort. Such
    a triggering request is particularly important if a defendant
    wants the relief afforded by the second portion of subsection
    (4)(e): “grant[ing] a severance so that he or she may be tried
    within the time limits applicable to him or her.” Obviously,
    the severance remedy of § 29-1207(4)(e) is available only
    when the issue of severance is raised before the defendant’s
    speedy trial time expires. Indeed, two other state courts that
    have addressed the applicability of language identical to that of
    § 29-1207(4)(e) have suggested that it is the defendant’s bur-
    den to raise the speedy trial issue prior to the time when his or
    her speedy trial clock would otherwise expire.22
    Here, Roger raised an objection to the trial date on the
    ground it was outside his statutory speedy trial time. But
    despite the court’s direction that he file a motion to sever if
    he wanted the court to consider that issue before trial, Roger
    instead waited until the speedy trial time applicable to him
    expired, and then filed a motion for absolute discharge. By fol-
    lowing this procedure, Roger made a calculated choice that left
    only two possible outcomes.
    The first possible outcome was that the court would find
    the State had proved all the factors of § 29-1207(4)(e). If
    this occurred, the court would calculate Roger’s speedy trial
    time, excluding time required by § 29-1207(4)(e), and over-
    rule Roger’s motion for discharge. The second possible out-
    come was that the court would find the State had not proved
    all the factors of § 29-1207(4)(e). If this occurred, it would
    22
    Miller v. State, supra note 13; People v. Hernandez, 
    829 P.2d 392
    (Colo.
    App. 1991).
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    be too late to grant the relief referenced in the second sen-
    tence of § 29-1207(4)(e)—a severance to allow Roger to be
    tried “within the time limits applicable to him.” So instead
    of a severance, the court would calculate Roger’s speedy trial
    time without excluding any additional period of time under
    § 29-1207(4)(e), and Roger would be entitled to an absolute
    discharge under § 29-1208.
    [13] As such, while it is correct that Roger’s failure to
    request a severance before his speedy trial time expired had the
    practical effect of waiving the possibility of a severance, it is
    incorrect to say the procedure he used resulted in a waiver of
    his right to speedy trial.23
    (b) Factors of § 29-1207(4)(e)
    Were Satisfied
    Here, the parties agree the trial court correctly found the
    first factor of § 29-1207(4)(e) was satisfied; Roger’s case was
    joined for trial with Allen’s case, and when Roger filed his
    motion for discharge, the speedy trial time for Allen had not
    run. The parties disagree on whether the State proved, by a
    preponderance of the evidence, the remaining two factors of
    § 29-1207(4)(e). We address each factor in turn.
    (i) Reasonableness of Delay
    In considering the reasonableness of the delay, the trial court
    began by identifying the period of time to be measured. The
    court concluded, and all parties agree, that without factoring
    in the codefendant exclusion, Roger’s speedy trial time would
    have expired January 24, 2016, due to a pretrial discovery
    motion that extended the 6 months under § 29-1207(4)(a).
    The court thus concluded the critical period was the 8 days
    between January 24 and February 1 (the day the joint trial was
    set to begin).
    [14] In a case such as this, where the joint trial was set
    for a date certain when the motion for absolute discharge
    23
    See State v. Alvarez, supra note 11.
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    was filed, we agree that the period of delay for purposes of
    § 29-1207(4)(e) is determined by first calculating the defend­
    ant’s speedy trial time absent the codefendant exclusion and
    then determining the number of days beyond that date that the
    joint trial is set to begin. To the extent Roger’s second assign-
    ment of error asserts, incorrectly, that the trial court measured
    the time period by using Allen’s speedy trial calculation rather
    than Roger’s, we find the assignment meritless.
    The trial court expressly found the 8-day period of delay
    reasonable. It referenced exhibit 5, the affidavit of the court
    clerk, which showed that no “week-long” jury settings were
    available during the January 2016 jury term. During the pre-
    trial conference, the court was advised it would take 5 days
    to try the joined cases. The court also expressed concern that
    the January jury pool was not large enough to accommodate
    the peremptory strikes of two defendants. On this record, we
    find no clear error in the court’s finding that the 8-day delay
    was reasonable.
    (ii) Good Cause for Not
    Granting Severance
    In its order, the trial court expressly found that “no good
    cause would exist for severance.” The phrasing of this find-
    ing does not precisely track the statutory language, which
    requires a finding that there be “good cause for not granting a
    severance.”24 While we emphasize that the statutory standard
    is the proper one, we conclude the trial court’s articulation
    was not material to its analysis of the good cause issue. Our
    review will focus on whether it was clearly erroneous for
    the court to determine there was good cause for not granting
    a severance.
    [15] We have not defined “good cause” for purposes of
    § 29-1207(4)(e), and the statute contains no definition. But
    in the related context of considering “good cause” under the
    24
    § 29-1207(4)(e).
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    speedy trial provisions of Nebraska’s detainer statute,25 we
    have said “‘[g]ood cause means a substantial reason; one that
    affords a legal excuse.’”26 We have also recognized that good
    cause is “‘something that must be substantial, but [is] also a
    factual question dealt with on a case-by-case basis.’”27 While
    this definition of good cause is general, we conclude it is a
    fitting definition to apply to our analysis of speedy trial rights
    under § 29-1207(4)(e).
    Roger argues the trial court’s only reason for finding good
    cause not to grant a severance was the fact that he never filed
    a motion to sever. While we are persuaded that Roger’s fail-
    ure to request a severance, particularly after the court invited
    such a motion, is a relevant consideration when determining
    whether there was a sufficient legal excuse for “not granting a
    severance,”28 our reading of the court’s order is not as narrow
    as Roger suggests.29 In discussing good cause for not granting
    a severance, the court’s order provided:
    [Roger’s] case was joined with [Allen’s] case on
    November 18, 2015, before expiration of the statutory
    speedy trial time for either case. No severance has been
    requested by Roger since the cases were ordered consoli-
    dated. The [c]ourt has considered the evidence received
    today, exhibits 4-13, and also exhibits 1-3 received at
    the hearing on consolidation. The [c]ourt also takes
    judicial notice of all filed documents in [both criminal
    cases]. The [c]ourt finds that no good cause would exist
    for severance.
    Here, the court considered more than just Roger’s failure to
    request a severance. It also considered the evidence offered in
    25
    See Neb. Rev. Stat. § 29-3805 (Reissue 2016).
    26
    State v. Kolbjornsen, 
    295 Neb. 231
    , 237, 
    888 N.W.2d 153
    , 157 (2016).
    27
    
    Id. 28 §
    29-1207(4)(e).
    29
    See U.S. v. Maryea, 
    704 F.3d 55
    (1st Cir. 2013) (and cases cited therein).
    See, also, State v. Alvarez, supra note 11.
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    support of the original joinder, the exhibits offered by the par-
    ties during the hearing on the motion for discharge, and all the
    filings in each criminal case. This evidence supports the court’s
    conclusion that there was a substantial reason for not granting
    a severance, sufficient to satisfy good cause. On this record, we
    find no clear error in the trial court’s determination that there
    was good cause not to grant a severance just a few days before
    trial was set to begin.
    In summary, we find the trial court correctly interpreted
    and applied the codefendant exclusion under § 29-1207(4)(e).
    It did not clearly err in finding that all three factors under
    § 29-1207(4)(e) were proved by a preponderance of the evi-
    dence or in computing Roger’s speedy trial time by excluding
    the 8 days between January 24, 2016, and the start of trial on
    February 1. As such, the court correctly overruled Roger’s
    motion for absolute discharge.
    V. CONCLUSION
    For the foregoing reasons, we affirm the decision of the
    district court.
    A ffirmed.